Redhead v. Dunbar & Sullivan Dredging Co.

116 A.D. 34, 101 N.Y.S. 301, 1906 N.Y. App. Div. LEXIS 2592

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 1906
• Status: Published

Opinion

Kellogg, J.:

The plaintiff’s exception to the refusal of the court to adow an expert to testify as to the .usual way in which a counterpoise is placed upon such a machine was well taken. The evidence in the case tended to show the defendant negligent in the manner in which the counterpoise was placed.

As there is to be a new" trial we will refer to two other matters which came up on the trial. The allegation in the complaint that the facts were all and each without any fault or negligence on the part of the plaintiff is a sufficient allegation of the plaintiff’s freedom from negligence under the Employers’ Liability Act (Laws of 1902, chap. 600).

It cannot be said, as a matter of law, that after the dredge began • to tip and the plaintiff saw that an emergency had arisen, that he was negligent in leaving the place where he was at work and trying to ascertain what was the matter, or to seek a place of safety.

The judgment is, therefore, reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred.

Judgme'nt reversed and new trial granted, with costs to appellant to abide event.